Citation Nr: 9816361
Decision Date: 05/27/98 Archive Date: 06/03/98
DOCKET NO. 97-06 731A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Whether the request for waiver of recovery of an overpayment
of nonservice-connected disability pension benefits was
timely filed.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1943 to February
1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a November 1996 decision by the
Department of Veterans Affairs (VA), Committee on Waivers and
Compromises (COWC) at the Regional Office (RO) in Oakland,
California, which denied waiver of overpayment of pension
benefits in the amount of $4,810.
The record also reflects that in June 1995 the COWC denied
waiver of overpayment of $750, incurred from November 1, 1993
to January 31, 1995, which the veteran did not appeal.
The Board notes that the veteran has raised a claim
contesting the amount of overpayment. The Board finds that
the issue of the amount of overpayment created has not been
developed for appeal, and the matter is, therefore, referred
to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he submitted a timely
request for waiver of the $4,810 overpayment. He argues that
he telephoned VA’s Debt Management Center in March 1996 to
obtain forms, and that he also applied for waiver on
August 20, 1996.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim that a request for waiver of
overpayment was timely filed.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. In September 1995, the veteran was awarded nonservice-
connected disability pension benefits, effective from
November 1, 1993, based upon his reported annual income.
3. In February 1996, the RO notified the veteran that
payments were being terminated because evidence reflected
that his income exceeded VA pension limits.
4. On March 1, 1996, the VA notified the veteran that an
overpayment in the amount of $4,810 had been created.
5. On September 30, 1996, VA’s Debt Management Center (DMC)
received a financial status report by fax, from the veteran.
6. On October 7, 1996, the RO received the veteran’s request
for waiver of the $4,810 overpayment.
CONCLUSION OF LAW
A request for waiver of recovery of nonservice-connected
disability pension overpayment indebtedness was not timely
filed. 38 U.S.C.A. § 5302 (West 1991); 38 C.F.R. § 1.963
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
In August 1994, the RO granted entitlement to nonservice-
connected disability pension, effective from November 1,
1993.
In February 1996, the RO notified the veteran that payments
were being terminated because the evidence reflected that his
income exceeded VA pension limits. On March 1, 1996, the VA
notified the veteran that an overpayment in the amount of
$4,810 had been created. The veteran was also provided
information that a request for waiver of overpayment must be
submitted in writing and received within 180 days.
The record reflects that on September 30, 1996, the DMC
received a financial status report from the veteran, by fax
and dated August 20, 1996.
On October 7, 1996, the RO received the veteran’s request for
waiver of the $4,810 overpayment, signed by the veteran on
September 26, 1996. The RO also received a financial status
report dated September 26, 1996.
In his November 1996 notice of disagreement the veteran
stated that he had applied for a waiver on August 20, 1996,
and stated that he had failed to get a response when he
telephoned VA’s Debt Management Center in March 1996 to
obtain the proper forms. In his March 1997 substantive
appeal, the veteran stated that he had attempted to resolve
the matter in a March 1996 telephone conversation to VA, and
that he had mailed a request for waiver on or about August
20, 1996.
Analysis
Initially, the Board notes that the veteran’s claim is found
to be well-grounded under 38 U.S.C.A. § 5107(a) (West 1991).
That is, he has presented a claim which is plausible. Murphy
v. Derwinski, 1 Vet. App. 78 (1990). The Board is also
satisfied that all relevant facts have been properly
developed, and that no further assistance is required in
order to satisfy the duty to assist mandated by 38 U.S.C.A.
§ 5107(a).
VA law provides that requests for waiver of an indebtedness
shall only be considered if made within 180 days following
the date of a notice of indebtedness, but that the 180 day
period may be extended if the individual requesting waiver
demonstrates that, as a result of an error by either VA or
the postal authorities, or due to other circumstances beyond
the debtor’s control, there was a delay in such individual’s
receipt of the notification of indebtedness beyond the time
customarily required for mailing. 38 U.S.C.A. § 5302 (West
1991); 38 C.F.R. § 1.963 (1997).
In this case, the evidence shows that the veteran was
notified of the overpayment by letter dated March 1, 1996.
The veteran does not allege that he failed to receive the
March 1996 notice; in fact, he claims that he telephoned VA
in March 1996 to obtain forms in an attempt resolve the
matter. There is no record of the claimed telephone
conversation or that he applied for a waiver at the RO prior
to October 7, 1996.
Although the veteran claims that he applied for waiver in
August 1996, there is no evidence that he requested a waiver
at that time. The Board notes that the record includes a
financial status report signed by the veteran and dated
August 20, 1996; however, there is no evidence that he mailed
that document at that time. It was not received at DCM until
late September 1996, after expiration of the time period for
filing a waiver.
Therefore, the Board finds that no evidence has been
submitted which demonstrates a delay in the veteran’s receipt
of the notification of indebtedness that would warrant an
extension of time for a waiver request. In addition, the
Board finds that the veteran has not submitted credible
evidence demonstrating that he submitted any document that
could be construed as a request for waiver earlier than the
financial status report received by DCM on September
30, 1996.
In the absence of clear evidence to the contrary, the law
presumes the regularity of the administrative process.
Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing
Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)).
Notification for VA purposes is a written notice sent to the
claimant’s last address of record. See 38 C.F.R. § 3.1(q)
(1997). Therefore, the Board must conclude the appellant
received notice of indebtedness in March 1996, and that a
timely request for waiver was not submitted.
ORDER
A request for waiver of recovery of an overpayment of
nonservice-connected disability pension benefits in the
amount of $4,810 was not timely filed.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -